Introduced Version
Senate Bill 435 History
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Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 435
(By Senator Kessler
)
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[Introduced February 4, 1999;
referred to the Committee on the Judiciary.]
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A BILL to amend and reenact section thirty, article five, chapter
fifty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to provisions for
appeal by the state in criminal proceedings.
Be it enacted by the Legislature of West Virginia:
That section thirty, article five, chapter fifty-eight of
the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be repealed; and that a new section thirty of said
article be enacted in lieu thereof, to read as follows:
ARTICLE 5. APPELLATE RELIEF IN SUPREME COURT OF APPEALS.
§58-5-30. Appeal by the state in criminal proceedings.
(a) An appeal may be taken by the state from any of the
following:
(1) An order by the circuit court setting aside or
dismissing any case, indictment, information, warrant or criminal complaint or any count or portion thereof;
(2) A pretrial order preventing the prosecution from
obtaining evidence or an order granting a motion for suppression
or exclusion of evidence, or an order granting a motion limiting
the use of evidence, or an order requiring the return of seized
property, not made after the defendant has been put in jeopardy
and property, not made after the defendant has been put in
jeopardy and before the verdict or finding on an indictment or
information;
(3) An adverse pretrial ruling on a substantial question of
law pursuant to the provisions of section two, article five of
this chapter;
(4) An order granting a new trial;
(5) An order arresting judgment;
(6) The imposition of an unlawful sentence. As used in this
paragraph, "unlawful sentence" means the imposition of a sentence
not authorized by law or the imposition of a sentence based upon an unlawful order of the court which strikes or otherwise
modifies the effect of an enhancement or prior conviction.
(b) A ruling adverse to the state on a question of law may
be cross-assigned as error on appeal, if defendant was convicted
and appeals from the judgment.
(c) An appeal pursuant to subdivision (2),
subsection (a) of
this section may be taken only when the prosecuting attorney
certifies that the appeal is not taken for the purpose of delay
and that the evidence affected by the circuit court's order
constitutes substantial proof of a fact material and not merely
cumulative to the proceedings. As used in this section,
"substantial proof of a fact material" means evidence which is
highly probative of a fact relevant to the resolution of the
case. Interlocutory appeals filed pursuant to subdivision (2),
subsection (a) of this section shall be given priority if
accepted for review by the supreme court of appeals. The supreme
court of appeals may, by rule of appellate procedure, provide for
an expedited procedure in interlocutory appeals brought pursuant
to subdivision (2),
subsection (a) of this section.
(d) If the state decides to appeal any ruling described in subsection (a) of this section, a notice of intent to appeal must
be filed with the clerk of the court in which the ruling was made
within ten days of the ruling. The order reflecting such ruling
shall be entered within ten days of the ruling. State appeals
shall be filed with the clerk of the circuit court having
original jurisdiction within thirty days of the entry of the
order reflecting the ruling described in subsection (a) of this
section.
(e) All underlying proceedings shall be stayed and all
statutory speedy trial provisions, including the provisions of
sections one and twenty-one of article three, chapter sixty-two
of this code, shall be tolled once a notice of intent to appeal
is filed by the state and during the pendency of the appeal.
(f) If the state appeals pursuant to this section and the
defendant is on bail, he or she shall be permitted to remain at
large pursuant to the terms of the existing bail. If the
defendant is in custody or if the appeal is from an order which
would terminate the prosecution, he or she, on request, is
entitled to a prompt reconsideration of the amount, terms and
conditions of bail or recognizance.
(g) A defendant has full appellate rights to defend against
any petition for appeal initiated by the state, and he or she may
cross-assign error on orders or judgments appealed by the state.
NOTE: The purpose of this bill is to provide for appellate
relief for the state in criminal proceedings.
This section is completely rewritten, therefore,
strike-throughs and underscoring have been omitted.